HARISH CHANDER MALIK Vs. VIVEK KUMAR GUPTA

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree dated 1.9.2008 passed by the learned trial Court rejecting the plaint of the appellant under Order 7 Rule 11, CPC as being barred by law.

(2.) The facts necessary to be noticed for disposal of the present appeal are that plaintiff (appellant herein) claims himself to be the owner of shop bearing No. 12, Esplanade Road, Chandni Chowk, Delhi, measuring 30 sq. yards (hereinafter referred to as 'the shop'), having purchased the same from its erstwhile owner, Sh. Preet Kumar Gupta, on 15.9.2003 by means of a Registered Sale Deed. Smt. Bimla Kumari Gupta, the mother of respondent Nos. 1-3, was inducted as a tenant in the said shop. The tenancy of the mother of respondent Nos. 1-3 was terminated by the erstwhile owner Sh. Preet Kumar Gupta in the month of January, 2000. The mother of respondent Nos. 1-3 died in the month of February, 2000, and thereafter respondent Nos. 1-3 continued to remain in possession of the said shop. As per the plaint, after the death of the mother of respondent Nos. 1-3, respondent Nos. 1-3 sublet a portion of the shop to one Sh. Raj Kumar Singh (respondent No. 4 herein), who was carrying on the business of sale of readymade garments from the said shop at a monthly rent of Rs. 15,000/-, per month. The sub-tenant was, however, forcibly evicted by respondent Nos. 1-3 on 15.7.2003. On 17.7.2003, appellant received a notice from respondent Nos. 1-3, stating themselves to be the lawful tenants of the shop, enclosed with a cheque in the sum of Rs. 2500/- towards rent for the period from March, 2003, to July, 2003, @Rs.500/-,per month. The appellant replied to the aforesaid notice disputing all the contentions raised by respondent Nos. 1-3. It was also stated in the reply that the mother of respondent Nos. 1-3 was in an unauthorized occupation of the shop at the time of her death and therefore, no better title can be derived by the respondent Nos. 1 to 3 therefrom. Subsequently, vide notice dated 8.8.2003 the respondent Nos. 1-3 were called upon to hand over vacant physical possession of the said shop before 30.8.2003. The cheque in the sum of Rs. 2500/-, which was enclosed with the legal notice, was also returned vide letter dated 9.8.2003. Since the respondent Nos. 1-3 failed to hand over vacant physical possession of the said shop, the appellant filed a suit for possession and mesne profits.

(3.) As the respondents had not filed the written statement within the time allowed, the right to file written statement of respondent Nos. 1-3 was closed by the learned Additional District Judge vide order dated 25.7.2005 against which the respondent Nos. 1-3 preferred Civil Misc (Main) Petition which was dismissed by this Court. A Special Leave petition was also filed by respondent Nos. 1 -3 which was also dismissed vide order dated 25.8.2006 and the order of the trial Court by which right to file written statement was closed attained finality.